In May of 2014, a probationary deputy with the Bay County, MI Sheriff’s Office receives a $480,000 settlement after filing his lawsuit claiming First Amendment retaliation was the cause of his dismissal.
In November of 2013, a probationary corrections officer in Yellowstone County, MT receives a $100,000settlement after filing her lawsuit claiming sexual harassment and disability discrimination.
In March of 2013, a probationary officer in North Las Vegas, NV receives a $115,000 settlement after filing her lawsuit claiming retaliation under the Fair Labor Standards Act (FLSA).
In 2008, a probationary officer in South Gate, CA receives a $1 Million settlement in his lawsuit claiming racial discrimination, among other claims.
These aforementioned summary figures do not include the costs incurred by the agencies, counties and municipalities in defending the lawsuits prior to settlement. Nor do they account for the hours of productive work lost to the handling of the suits within the agencies.
This sampling of cases throughout the country may very well point to a concerning trend in public safety—agency leaders acting under the impression that probationary officers do not pose a risk of personnel lawsuits should their dismissals lack transparency and explanation. In other words, the mistaken belief that probationary officers can be fired for any reason or no reason—end of story. Although that type of language may well be present in local or state legislation or in collective bargaining agreements, which does not supersede federal protections covering employees nationwide regardless of probationary status.
Many agency leaders may have an appreciation of the importance of carefully and thoroughly documenting the non-discriminatory rationale or just cause for terminating a post-probationary officer on the one hand, while simultaneously engaging in a practice of summarily dismissing probationary officers without telling them why (i.e. using a form letter which speaks of inadequate performance in generic terms).
The confusion with respect to probationary officers is understandable. Often times, probationary officers lack a multitude of employment protections enjoyed by their post-probationary counterparts including union representation, rights outlined in a collective bargaining agreement, and rights to personnel review board hearings, among other things. However, it is important that agency leaders have a clear understanding of the fact that employee protections under the First Amendment and federal employment statutes such as Title VII of the Civil Rights Act of 1964 (prohibiting discrimination based on race, gender, national origin or religion), the Americans with Disabilities Act (prohibiting discrimination based on disability when a reasonable accommodation of said disability is practical) and the Age Discrimination in Employment Act (prohibiting discrimination based on age when the plaintiff is 40 years old or older) are not dependent on an individual employee having obtained post-probationary status.
Probationary officers who claim that they were not offered permanent employment for discriminatory reasons can sue under federal employment statutes, can cost agencies a tremendous amount of money and time, and can ultimately succeed in federal court. The best practice to minimize these risks would be to approach all dismissals the same way, in the sense that a thorough explanation of the lawful rationale leading to the decision should be communicated to the officer and documented thoroughly. Termination letters—whether dismissing a probationary or post-probationary employee—should discuss objective facts regarding poor performance and/or misconduct and an explanation of how and why those facts have led the agency leaders to make the termination decision as part of their obligation to serve and protect the public.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.